Should government be involved in marriage?

The debate over same-sex marriage has prompted a lot of thinking about the nature of marriage itself. One solution to the current crisis has been mooted by libertarian writers: privatise marriage. Here Patrick Burke, a libertarian, explains why marriage is special and governments still have a role.

Libertarians believe in having as little government as possible and for this they have good reasons. The chief role of government, in libertarian eyes, is to protect its citizens from harm. First, from aggression by other nations, which government can do by having an effective foreign policy and military. Second, from aggression by criminals, which government can do by having a just and effective system of justice: police, courts of law and prisons. When all this has been done—not exactly a small item—libertarians believe government has pretty much finished its job. The rest should be left to the free agreements of individuals with one another. For every action of government uses, or threatens to use, physical force, and to use force on people when they have not done any harm is contrary to human dignity. It also makes everybody poorer than they need be, as Adam Smith demonstrated long ago. The happiest and most successful society is the one that leaves people what Smith called their “natural liberty.”

Marriage does not seem to fall under any of the aggressive activities that people need to be protected against. If a man and a woman want to get married, that is their own affair because it does not harm anybody else. It belongs to the most intimate sphere of life, the bedroom, and we do not want government in our bedroom. This is why for many centuries marriage was regulated by the church, not by government. For a thousand years in mediaeval Europe marriage disputes were settled in church courts under church rules. Reasoning along such lines, some libertarians—notably Ron Paul—are now calling on government to take itself completely out of marriage.

This reasoning is not entirely wrong, but it leaves out something essential. Marriage is a contract. No doubt it is much more than a contract. In the Christian view it is also a sacrament: a visible sign of an invisible grace. But whatever else it may be, it is at least a contract. It is a solemn public agreement. When we get married, we pledge to share our life with another person. As in any contract, we lead the other person to rely on us to carry out our promise. In any contract, if we break our promise, we cause harm to the other person because we cause them to lose everything they have invested in it. This is why government is involved in all contracts, and rightly so. Marriage creates rights.

In marriage especially, more than in any other kind of contract, we can cause immense, lifelong harm beyond any possibility of repair. Marriage creates the most intimate of human relationships, making us most vulnerable to one another. We have led the other person to give up her or his life alone, relying on us to share our life with them in place of that, so that the two of us can build up a new life together. If we break that promise, we can easily destroy the other person’s life. But that life is just as valuable as mine. If I break the other persons’s life, I deserve to have my own broken. Of course, if a marriage is irretrievably broken, there must be some provision for that. The message of the New Testament is that the provision should be compassionate.

Marriage is especially for the sake of the children. They have been brought into the world through the unity of their parents, and they need that unity to continue. If their parents break up, many children never recover. It mars their whole life. Children have rights, and it is the task of government to protect those rights.

Marriage involves property. Every family needs to have family property, property that belongs to them not as individuals but as members of the family. Children especially need this. But property always must be governed by rules. If one spouse dies, what provision is made for the other, and for the children? Disputes can arise, which need to be settled authoritatively, and therefore by government.

All societies we know of have had definite rules about marriage, usually presupposing a definition of marriage. There are some kinds of theoretically possible “marriages” that all societies have rejected. None give legal recognition by government, which would involve distinct property rights, to “marriages” between fathers and their sons, or between mothers and their daughters. The action of government is needed to set these rules.

The jurisdiction of the church over marriage during the middle ages did not remove marriage from the purview of government but was a result of the traditional union of church and state. As the Roman civil authority collapsed in the face of the barbarian invasions, the Christian bishops, already officials of the state since the emperor Theodosius, remained and took responsibility for what was left of civil society. The subsequent feudal states in effect gave authority to the church, as they also gave the universities certain rights of self-government. But they always retained the power to take it back, which the modern state has done.

The theory that marriage does not need government is foolish and irresponsible. It is related to the even more foolish and irresponsible theory that society itself does not need government. Some libertarians argue, with Murray Rothbard, that all the responsibilities of government can be carried out by the market. It is true that many of them in our day can be, because government has claimed authority in so many areas of life where it does not belong. But a true market is always only a free one, and is not compatible with the unjust use of force. The fact is, however, there will always be people who use unjust force, including in marriage. In the face of them, the market is helpless. Only government can ensure a free and true market. As John Locke argued, true freedom is always freedom under law. Likewise, marriage needs to be protected by the law.

In the Western world marriage has fallen into relative disfavor. Couples now often live together without marriage and have children without marriage, or deliberately have children without a spouse. It is not clear that this is a great benefit either to them or to the society, for a successful marriage is by far the most satisfying of all human relationships. If we ask why marriage is currently in decline, an important reason is undoubtedly that government has abdicated its responsibility for protecting it. Divorce should be possible, but it should not be easy, just as marriage should not be easy. By making divorce easy, even frivolously easy—usually a unilateral breaking of the contract—government has emptied marriage of its most basic value, which is the guaranteed and dependable sharing of a life together. Although government is needed, then, that is not to say its role has always been benign. The current attempts by members of the legal profession to label same-sex unions “marriages” testifies—if we needed any more testimony—to the foolishness and cupidity of the legal and political class to whom we have entrusted our laws, who are willing to have the society they govern pay any price if only it will reelect them.

Like other valuable institutions in our society, marriage and the family have been systematically weakened over the last fifty years, especially by the current obsession with equality. Many people have come to view marriage and the family, no longer as treasures to be protected but as haunts of oppression and exploitation, a’ la Marx. But libertarians are not Marxists. You cannot love freedom and also love Marx who wanted to abolish it. Libertarians are not anarchists. Libertarians believe in law and government, because without law and government there is no freedom. For the same reason libertarians should also believe in marriage and the family.

Thomas Patrick. Burke, president of the Wynnewood Institute, is the author of The Concept of Justice: Is Social Justice Just? and No Harm.

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